Summary :Arra Ashjian v. Orion Power Holdings, Inc., 70 A.D.3d 738, 895 N.Y.S.2d 459 (2d Dept. 2010)(Feb. 9, 2010). Plaintiff was injured when he stepped into an unguarded, open hatch on the deck of the owner’s barge while overhauling a turbine engine. Relying on various Court of Appeals decisions, the court held that under the Longshore and Harbor Workers’ Compensation Act (LHWCA), an injured workers’ employer “shall not be liable to the vessel for . . . damages directly or indirectly and any agreement or warranties to the contrary shall be void.” The court held that the barge was a vessel within the meaning of the LHWCA and the action against the employer must be dismissed. The court also held that the LHWCA preempts causes of action under §240(1) and 241(6). However, a claim for common law negligence (dangerous condition) can be viable, but only attaches if the owner controls the work site and has actual or constructive notice of the dangerous condition. The plaintiff failed to state a cause of action for common law negligence and for §200.
Practice Note: The first question to ask and answer is whether a “ vessel” is involved within the meaning of the LHWCA.